Appeal under section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an impoundment of a motor vehicle under section 55.1 of the Act for driving while suspended
Between:
Michael Broughton
Appellant
-and-
Registrar of Motor Vehicles
Respondent
REASONS FOR DECISION
Panel: Jennifer Friedland, Member
Appearances:
For the Appellant: Michael Broughton, Appellant
For the Respondent: Sanjay Kapur, Agent
Place and date of hearing: By teleconference, January 16, 2020
Overview
1The appellant appealed the impoundment of his 2008 Dodge Durango (the “vehicle”) which was detained and impounded on December 5, 2019 under s. 55.1 of the Highway Traffic Act (the Act) for being driven by a person whose licence was subject to a criminal code suspension. In this case, the driver was the appellant himself.
Issue
2The impoundment was appealed pursuant to s. 50.2 (d) of the Highway Traffic Act, R.S.O. 1990, c. H. 8 (the “Act”) on the ground that the impoundment will result in exceptional hardship.
Result
3Following a hearing on January 16, 2020, I ordered the Registrar to release the motor vehicle on the appealed ground. I wrote that reasons would follow. These are my reasons.
Preliminary and Interim Objections
4At the start of the hearing, the appellant objected to the admission of the registrar’s documents on the basis that the documents were delivered a day past the deadline ordered by the Tribunal following a case conference. Rule 9.4 of the Tribunal’s Rules1 prohibits a party from relying on late disclosure unless the Tribunal consents. For reasons given orally at the hearing, I consented to the admission of these documents.
5During the above argument, there was some discussion as to whether the appellant could call his wife as a witness despite not having given notice. Although the registrar did not oppose the request, the issue went unresolved initially as the hearing had simply moved on. However, at various times during the appellant’s cross-examination, he advised that his wife have to answer certain questions that were outside his knowledge. Then at the end of his testimony, the appellant confirmed that he would call his wife. The registrar now objected on the basis that the wife’s evidence would be tainted having sat through her husband’s testimony. I allowed the wife’s testimony to proceed. While I agree that it would have been preferable for the wife to have given her evidence first, the same complaint could then have been made against the appellant, who would have sat through her evidence and would have been entitled to do so as a party. Ultimately, I found myself able to appropriately assess the body of evidence and come to a conclusion irrespective of the diminished weight I afforded the wife’s testimony.
The Test for Exceptional Hardship
6Section 10 of Regulation 631/98 sets out the requirements that must be met before the Tribunal may order the release of a vehicle on the grounds of exceptional hardship. The test is difficult to meet.
7Pursuant to section 10 (1) of the Regulation, the first part of the test for exceptional hardship requires the Tribunal to consider whether “no alternative to the impounded motor vehicle is available.”
8Section 10 (4) then sets out what an appellant must show in order to meet this initial prong of the test:
10 (4) In order to show that no alternative to the impounded motor vehicle is available… the owner must demonstrate that every reasonable option has been considered and inquired into that could eliminate or adequately mitigate any threat or loss to the person, including using another vehicle and making arrangements to do without any motor vehicle during the impound period.
9If I find that the appellant has no alternative to the impounded vehicle, s. 10 (1) then requires me to consider whether the impoundment will result in,
(a) a threat to the health or safety of any person ordinarily transported by the motor vehicle; or
(b) a threat to the public health and safety or to the environment or property of a community in whose service the motor vehicle is ordinarily used. O. Reg. 456/10, s. 3.
10Sections 10 (2) and 10 (3) together establish other factors that may or may not be considered by the Tribunal in certain circumstances. Under these provisions, read together, the Tribunal cannot ever consider the factor set out in s. 10 (2) (a) “inconvenience to any person” in determining exceptional hardship.
11With respect to the other factors in s. 10 (2), namely: (b) financial or economic loss to any person; (c) loss of employment or employment opportunity to any person; and (d) loss of education or training or of an educational or training opportunity to any person, the Tribunal may only consider those criteria if pursuant to s. 10 (3) the owner demonstrates that:
(a) no alternative to the impounded motor vehicle is available;
(b) the loss will be immediate, significant and lasting;
(c) the impact of the loss will be upon a person ordinarily transported by the motor vehicle; and
(d) the impact of the loss,
i) will be upon a person other than the person whose driving while he or her driver’s licence was under suspension resulted in the impoundment of the motor vehicle, and
ii) will not be a result of a loss by the suspended driver of the type set out in clause (2) (b), (c), or (d).
12Below I will apply the facts as found by me in this case to the legal test set out above.
Facts & Analysis
13The threshold factor to consider is whether there is an alternative to the impounded vehicle. I found in this case that there was not.
The family’s typical use of the vehicle
14The impounded vehicle was the family’s only working vehicle. It was used for the business that was owned 50/50 by the appellant and his wife. The business was a contracting business and was the family’s only source of income (other than the wife’s child tax benefits received for one of her children). The appellant refers to the vehicle as a “truck.” It is also used with a trailer to haul materials to or from a work site.
15Typically, the vehicle was driven by the appellant’s brother who worked with the appellant and his wife, neither of whom had a valid driver’s licence. The appellant’s licence had been suspended since 2004 following a conviction for dangerous driving. It remained suspended due to his failure to have completed a remedial program. It was unclear on the evidence why the appellant’s wife did not have a driver’s licence, but this fact was not in dispute.
16According to the appellant’s testimony, the appellant’s brother would get dropped off by his girlfriend early in the morning at the appellant’s home. He would then drive the appellant and his wife to the work site and also drop the appellant’s step-daughter at school. The brother or another employee would also assist the family with various errands using the vehicle. Their daughter had acquired her G2 licence during the period of the impoundment and also could have driven the vehicle.
17According to the appellant, the appellant and his wife were driven by a new worker on the day the vehicle was impounded. However, this person walked off the job that day, leaving the appellant and his wife without a driver of their vehicle. While I find that testimony a little suspect, (I suspect the appellant was driving his own vehicle that day), it was not questioned by the registrar and does not undermine the other facts on which I do rely, including that on the day the car was impounded, the appellant’s wife was pregnant and diabetic and required insulin. The appellant drove the truck and his wife home. They were pulled over by the police along the way and the truck impounded.
18The appellant miscarried the day after the vehicle was impounded. She blames the impoundment for this tragic event, testifying that she was left on the side of the road to walk home on her own and had to walk a distance before she could even get a cell signal to phone her father who then picked her up. Mr. Kapur vigorously cross examined the appellant’s wife on this claim and submitted in closing that it is unreasonable for the appellant to claim that the officer left her to walk home that day, and that I should treat all of the wife’s evidence with suspicion. I am unable to accede to the registrar’s request in this regard. It is not in dispute that the appellant’s wife miscarried the day following the impoundment. That she blames the impoundment for this outcome is not surprising regardless of the reasonableness of that contention. Even if I were to accept this claim as exaggerated, it would not diminish my assessment of the rest of her testimony.
Whether there was an alternative to the impounded vehicle
19In my analysis as to whether there was an alternative to the impounded vehicle, I rely on the following facts which I find were proven on a balance of probabilities at this hearing:
(a) There was no public transportation in the area where the appellant lived, which was very rural;
(b) Taxis were cost-prohibitive and also tended not to come to the area where the appellant lived, being too far out to make the trip worth it;
(c) The appellant’s mother-in-law was able to drive the appellant’s wife to the doctor the day after the impoundment when she had lost her baby. His wife’s father picked her up. The appellant’s mother-in-law also took the daughter to school in December. However, transportation by the mother-in-law was not a long-term viable option as she had cancer, was undergoing chemotherapy, and was out of commission due to her chemotherapy for a substantial period of the impoundment. The appellant’s father-in-law was also not available to assist, as he worked nights and otherwise was tending to the mother-in-law. As well, these relatives lived over an hour away from the appellant.
(d) The appellant’s own mother was not available, as she was suffering from pneumonia, and had been in the hospital during the period of the impoundment.
(e) Neither the appellant’s mother nor his in-laws allowed the appellant’s family to borrow their vehicle so that someone else might drive it.
(f) The appellant had no consistent means of getting his step-daughter to school without the vehicle. She was in grade 12 and was facing academic probation as a result of days missed during the period of impoundment (albeit also because she had missed a series of days in the fall for other reasons).
(g) The appellant’s step-daughter was 17 years old and had recently acquired her G2 licence. She had been gifted a car for her 16th birthday, however this car was on blocks in the family’s yard. The appellant testified that it would likely cost about $5000 to get that car on the road. I accept that the appellant did not have the funds to repair this vehicle.
(h) The family was unable to get to church on Sundays as had been their practice.
(i) The appellant’s brother was able to borrow his girlfriend’s car at one point to drive the appellant’s wife to a customer’s house to get a contract signed. He also drove them for groceries on another occasion. However, this car was not available on a consistent basis, as the appellant’s brother’s girlfriend required the vehicle for herself. She had six sons who required transportation and she also needed the car for work.
(j) A rental vehicle was also not a possibility due to the financial circumstances of this family.
(k) Finally, I accept that there was no alternative at all to the impounded vehicle in terms of the appellant and his wife being able to run their business during the period of the impoundment. In this regard, Mr. Kapur embarked on an exhaustive cross-examination of both the appellant and his wife to suggest that they could have continued to work during the impoundment without the vehicle. However, I accept the appellant’s evidence that this was not in fact feasible. I accept that the vehicle was needed to transport materials to the work site, to remove debris from the work site and to get the appellant, his brother and his wife to the work site. As well, the appellant’s tools were in the impounded vehicle, and while he may have been entitled to retrieve those tools pursuant to the Act, as Mr. Kapur suggests, I accept the appellant’s evidence that he made substantial efforts to do so and was not successful. I further accept the appellant’s evidence that they could not even finish the job they were in the middle of completing without their vehicle.
20As some of my conclusions above are founded on my acceptance of the appellant’s evidence that his family was financially crippled during the period of the impoundment without the vehicle, (and thus could not afford to rent a car, or hire a taxi or fix their daughter’s vehicle, for example), I will also note the following evidence, which I accept on a balance of probabilities:
a) Without the money generated by their business, the appellant’s family could not meet their basic food needs during the period of the impoundment. They relied on food donations provided through their church and frozen foods remaining in their freezer;
b) The family was unable to pay their rent in December and January and had received a notice of eviction which was submitted in evidence.
c) The appellant had to pawn his wife’s wedding ring during the period of the impoundment in order to acquire funds toward the family’s basic needs during the impoundment; and
d) The appellant’s wife ran out of insulin during the period of the impoundment and she could not afford to renew her prescription. She finally found a clinic that would provide her with free insulin, but she could not get there without a vehicle, as shall be further discussed below.
Whether the impoundment would result in a threat to the health or safety of any person ordinarily transported by the motor vehicle
21Having found that there is no alternative to the impounded vehicle, I turn to the other elements of the test. If I find that the impoundment would result in a threat to the health or safety of any person ordinarily transported by the motor vehicle that will end my inquiry. I found in this case that it would.
22The appellant’s wife miscarried the day after the impoundment. She required transportation to the hospital that day which she obtained from her mother. However, she was unable to attend her follow up appointments in Toronto. The appellant also had complications following her miscarriage, including low-iron. As well, she suffers from diabetes and was unable to get to her endocrinologist during the impoundment.
23As a result of the impounded vehicle, the appellant’s wife also could not obtain her insulin, as she could not find a lift to the clinic that offered the insulin for free and could not afford her prescription. She had been out of insulin for a number of days by the time of this hearing.
24The above factors led me to conclude that the impoundment of the appellant’s vehicle would result in a threat to the health or safety of the appellant’s wife, who was ordinarily transported by the motor vehicle.
25Given this finding, it is unnecessary for me to decide whether I might also have considered financial loss, loss of employment, or loss of education in determining exceptional hardship in this case.
Conclusion
26On the evidence heard before me and for the reasons stated above, I was satisfied following this hearing, on a balance of probabilities, that the impoundment of the appellant’s vehicle would result in exceptional hardship as defined under the Act and the Regulations.
27Thus, by order dated January 17, 2020, I ordered the Registrar to release the appellant’s motor vehicle pursuant to s. 50.2(5) of the Act.
Licence Appeal Tribunal
Jennifer Friedland, Member
Released: March 03, 2020